Public Bill Committee

[Katy Clark in the Chair]

Clauses 52 and 53 ordered to stand part of the Bill.

Schedule 2 agreed to.

Clauses 54 to 64 ordered to stand part of the Bill.

Clause 65  - Child cruelty offence

Elfyn Llwyd: I beg to move amendment 40, in clause65,page53,line6,at end insert—
“( ) In that subsection, for “under that age” substitute “under 18”.”
From one brief look, it is clear what the amendment would do: it would extend or change the definition of a child, or at least the age. On Second Reading, I explained my concern that the Government had not taken the opportunity offered by the Bill to alter the definition of a child to include all those under the age of 18.
I welcome the fact that the clause introduces a child cruelty offence, which acknowledges that cruelty can be both physical and psychological. Before his elevation, the Solicitor-General worked hard on that issue and is to be praised for that. I know that this matter is close to his heart, as it is for everyone on the Committee.
I cannot understand why, in making that welcome move, the Government did not decide to go further and acknowledge that not all victims of child cruelty are under the age of 16. The idea that children stop being children when they reach their 16th birthday is patently untrue.
The hon. Member for Stockport made a powerful speech on Second Reading that impressed me and informed us all. I hope she will speak about this matter in Committee, because she has a wealth of experience to bring to the table. I do not pretend to have her detailed knowledge, but I welcome her being on the Committee and have no doubt that she will contribute in due course.
To back up to the point that a child does not stop being a child at the age of 16, we parents know that while some children at 16 are fairly mature, others who are much older are less mature. When I saw how much my son had spent on things at university that he should not have done, I thought he was highly immature at that time. I am glad he does not read Hansard.

Damian Hinds: To the best of your knowledge.

Elfyn Llwyd: Indeed. I shall try to prevent him from reading Hansard, but he is a BBC journalist so I am probably in trouble. The point I am making is that children do not become mature adults overnight. That is obvious and we need not dwell on it, but it goes to the core of why we are discussing the amendment.
Legal provisions already in place recognise that 16 and 17-year-olds are still vulnerable. For example, they are banned from purchasing alcohol and tobacco and their national minimum wage is £3.72 an hour, which is lower than that for older workers. Equally, a person must be 18 to qualify for universal credit, although some exceptions apply. Sixteen or 17-year-olds need to get the permission of their parent or guardian before getting married. Finally, regulations have been laid before Parliament that would allow parents to be prosecuted when they smoke in a car with a 16 or 17-year-old. Those are some examples—there are, I am sure, many others—that I thought I might remind the Committee of.
On Second Reading, I reminded the House that the United Nations convention on the rights of the child, as well as the Children Act 1989, define a child as a person under 18, hence noting that 17 and 18-year-olds are every bit as vulnerable as those younger than them. It is something of an anomaly, therefore, that the Children and Young Persons Act 1933—the legislation that provides for the legal protection of children from abuse and neglect—defines a child as anyone under 16. As a result of that inconsistency, 16 and 17-year-olds are not granted the same protection as those younger than them.
In light of that fact and others, I was approached by the Children’s Society and asked to table amendment 40. In an e-mail to me, it said:
“Last year in Wales 2,330 children aged 16-17 became ‘children in need’; whilst…In England around 16,000 young people aged 16-17 experienced a risk of homelessness as a result of conflict or relationship breakdown with their families…This age group is also the most likely to be reported as going missing with 35% of all those reported missing aged 15-17; furthermore…The Office of the Children’s Commissioner report into sexual exploitation by groups and gangs estimates that 7,260 16 and 17 year olds are at risk of child sexual exploitation.”
To add to that, last year 1,110 16 and 17-year-olds were recognised as being children at risk of significant harm and so were placed on child protection plans. Furthermore, in 2014, Ofsted reported 40 serious incident notifications from local authorities relating to 16 and 17-year-olds. More worrying still, 25% of victims of forced marriages also fall into the same age bracket. Children at this age are still dependent on their families. In the UK in 2014, 85% of 16 and 17-year-olds were in full-time education or training and in 2012, 90% of the age group lived with their families. Children living at home are more vulnerable, and to recognise that, it would stand to reason to raise the age limit in the definition of a child to those under 18.
Often in legislation—I have seen this before—we express concern about this age group, but nothing seems to be done. I do not know why we cannot change the law. Child protection is vital, and I recognise that the Bill has some good provisions in that regard. I do not demur from that, but we have an opportunity to review the definition and bring it in line with the UN convention on the rights of the child and other legislation. Now is the time to revisit the definition. I know the Minister will give a reasoned response in due course, but I would welcome any explanation as to why we cannot do that in the Bill.

Maria Miller: If amendment 40 were accepted, the new provisions in the Bill would cover any child up to the age of 18. Few people would think it not a good idea for us to amend the law in that way. The way forward has to be to ensure that the law fully captures all the ways in which children can be abused, for example through domestic offences, including those that cause non-physical suffering or injury.
I thank the Solicitor-General for his letter today explaining the Government’s position. It was helpful and it was generous of him to do that in advance of today’s sittings.
Children do not stop being children at 16 or at 17; indeed, I think that most of us probably think that our children do not stop being children for the rest of their lives. However, as I said on Second Reading, I know from first-hand experience the challenges Ministers face in making sure that there are no inconsistencies in the law. We know that most of these young people will be in full-time education or training and living at home with their families, which, as the right hon. Member for Dwyfor Meirionnydd said, puts them in a particularly vulnerable situation. I understand the complex set of legal considerations that the Solicitor-General has to go through.
The abuse of a 16 or 17-year-old by a parent, a guardian or any other family member who has responsibility for them has to be captured in the law. As the Solicitor-General says in his letter, there are many reasons why we need to ensure that there are protections. He highlighted the issue of honour-based violence and I understand why. I do not want there to be inconsistencies in the law. In his letter, he suggested that he might be able to clarify today how the new domestic abuse offence of coercive behaviour might offer protection to 16 and 17-year-olds. I will be listening carefully to what he says about his way forward.

Paul Beresford: I am listening to my right hon. Friend with some interest. I recognise the point she makes: my child of 36 still returns home with great difficulties, looking in particular at my hip pocket. I remember in my local government, social services days that the boot was sometimes on the other foot: I had to intervene on families where the child was abusing the parent, especially where the parent was a single mother. We had some appallingly difficult cases. So the position can be reversed.

Maria Miller: My hon. Friend, given his extensive experience in this area, speaks with some authority. Although some family situations may be as he described, that does not detract from the need for Members of Parliament to ensure that the law offers protection to those in a different situation who are on the receiving end of abuse. However, he makes a powerful point.
I will listen carefully to the Solicitor-General’s response. I think the ministerial team has understood the point made not only by Committee members but by those outside, and is responding positively.

Ann Coffey: I support amendment 40. What the right hon. Member for Dwyfor Meirionnydd said was logical and sensible and reflected the situation of 16 to 17-year-olds.
The use of language in this regard is interesting. We are conflicted in our attitudes towards children. For example, a 14-year-old girl who is the subject of sexual exploitation can be described as a child and as a young person, but the way we describe her influences the way we respond to her. If she is described as a child, we immediately have a sympathetic response, because it indicates to us her relationship to adults. If she is described as a young person, our response is more ambivalent, because she is seen as a mini-adult—in some way as having some equality with adults. The language used is a key factor.
Language is also a key factor in how a child is described in law, because that sets what the wider public and the systems in place to protect children regard as their responsibilities, but sadly their responsibilities towards 16 and 17-year-olds have been somewhat neglected. One of the great issues for me is that if a 16-year-old becomes homeless, the local authority has a duty to provide care and accommodation, but the accommodation they are placed in is not inspected. So its responsibility goes as far as providing that accommodation, but not as far as ensuring it is of a quality that keeps them safe and protects them. That reflects our ambivalence about our responsibilities towards this age group.
It is not only a question of how we describe a child, because when we say that somebody is a child, that indicates that we need to protect that child, and it also points to the responsibilities that adults have to the child. The word describes not only childhood, and the vulnerability of being a child, but the fact that adults have a responsibility for their actions towards that child. They are our responsibility, and that cannot be compromised by the behaviour of the child themselves.
It is important that we have consistency. I hope that the Minister will reply positively about recognising the vulnerability of children and young people aged 16 to 17. However, so that another inconsistency is not created, I suggest that he also recognises the vulnerability in the wider area of child cruelty. Personally, I do not mind inconsistencies—I am quite happy to live with them. We are all totally committed to ensuring that vulnerable children get the protection they need, and the law must be subservient to making sure that that happens.
As a legislature, we make laws, and while that does not mean that things happen, it sets a tone and creates an understanding out in the wider community. It would be really good if the Minister could indicate that the Government will move in the direction of recognising that 16 and 17-year-olds need protection in law.

Seema Malhotra: It is a pleasure to serve under your chairmanship today, Ms Clark.
I want to speak in favour of the amendment tabled by the right hon. Member for Dwyfor Meirionnydd and to support the remarks made by the right hon. Member for Basingstoke and my hon. Friend the Member for Stockport. At the heart of today’s debate is a huge issue that has emerged on our social and political agenda over the past few years: the child sexual exploitation that has been happening in this country on a scale that we have underestimated. We are still grappling to deal with that huge challenge. That has also shown that young people are vulnerable and that we cannot simply have a threshold of 16 that we say is the transition to adulthood in all circumstances. That should be reflected through the protection that we give to children under the law.
The right hon. Member for Dwyfor Meirionnydd highlighted various issues. I do not need to go over the different ages for being able to drive, vote, buy alcohol and so on, but I want to echo one point that he made. In the past year, there have been 40 serious incident notifications from local authorities to Ofsted in relation to 16 to 17-year-olds, which highlights the vulnerability that exists for so many of those people.
The Children’s Society provides a stark example that is a good illustration of how the law is failing children who are in difficult and vulnerable situations:
“Billie died after overdosing when her family had left her with no medical help for three days. The police were unable to prosecute members of the family under the laws set out under Children and Young Persons Act...because the child was 16 not 15. The police were unsuccessful in attempts prosecute her family under other laws.”
I understand—this was the case when the matter was discussed in the House of Lords—that much of the argument revolves around independence for 16 and 17-year-olds. However, if we consider the impact that being vulnerable has on someone younger than 16, or perhaps under the age of maturity, and the threats and challenges that vulnerable people find themselves facing, I think we have to look again at this issue. We know, for example, that about 50% of women in prostitution experienced child sexual exploitation when they were under the age of 18. Many I have talked to have raised their life story to show the impact of someone falling into a cycle of abuse that they cannot get out of. The key question is whether it would not be better to have an expansive threshold in legislation that could include those 16 and 17-year-olds who are at risk, rather than having an unexpansive threshold that leaves a cohort of children without protection. I look forward to the Minister’s response.

Robert Buckland: It is a pleasure to follow the hon. Lady, who was the last speaker in what has been a short but stimulating debate that has attempted to get to the heart of the inevitable anomalies that exist in how we attempt to classify children, young people and adults in law.
The situation was encapsulated very well by the hon. Member for Stockport, who said that she understood that there have to be inconsistencies because we are dealing with the complex development of individual people. Although there might be a certain consistency as to people’s physical development, we all know that emotional development is a much more complex thing. I hope that we have moved away from some of the cosy shibboleths of generations past that either refused to acknowledge that childhood existed in the first place—there was a time in English society when that was the case and children were treated as young adults—or considered physical development to be the sole arbiter of how we treat young people. The term “vulnerability” has been used. Sometimes that word itself is inadequate to deal with the gamut of experiences and individual characteristics that children and young people possess, but it is a good way to summarise where we have come to as a society in understanding our duties and obligations to the younger members of our community.
It is right, of course, that children and young people have different relationships according to where they might be. The relationships and obligations of individuals to children and young people at home are sometimes replicated in the school environment but, in other environments, there will be a different set of obligations and responsibilities. That is why the law contains the inconsistencies that we all acknowledge.
As the right hon. Member for Dwyfor Meirionnydd outlined, his amendment would increase the maximum age of those against whom the child cruelty offence in section 1 of the 1933 Act can be committed from 15 to 17. It would remain the case, however, that such an offence could be committed only by someone aged 16 or over who “has responsibility for” a child under 18. I believe that that is the phrase that we need to return to.
When we are dealing with amendments to Acts of Parliament, it is sometimes important to remember what we are amending. In this case, it is section 1 of the 1933 Act which, in itself, was a replication of an Act from 1868. One of the main reasons why I and other parliamentary colleagues called for a change in the law was that we thought that the language in the existing legislation was archaic, and in many respects did not reflect the realities of life for children and young people today. However, the phrase “has responsibility for” was not one of the parts of the legislation that caused me concern because there has to be a definition of the class of person with whom we were dealing. Let us not forget that the Bill is about offenders and how we tackle those who commit the terrible offences of neglect, abandonment, ill treatment and assault.
As the governing phrase is “has responsibility for”, the right hon. Gentleman’s amendment would have unintended consequences. For example, a 16-year-old might be prosecuted for child cruelty to a 17-year-old because the class of person against whom the offence had been committed would have been extended. It would be unfortunate, to say the least, if we created such inconsistency as a result of trying to rectify one that we perceive to exist.
It is absolutely right to recognise that young people of 16 and 17 often require protection by statutory services and the law. In many respects, the law provides that protection. For example, the law of assault, depending on the circumstances, applies to cruelty committed against 16 or 17-year-olds. The law already specifically protects 16 or 17-year-olds from sexual exploitation by those who hold a position of trust in their lives, or from exploitation through child sex or pornography. To force anyone over 16 into non-consensual sexual activity is already a serious sexual offence.
We must recognise that the various ages at which young people acquire rights and responsibilities, and at which the law protects or ceases to protect them from particular types of conduct, is a complex issue. Reference has already been made to the age of consent and the ages at which young people can buy various products, marry, drive a car or join the armed forces. Those and other age limits depend on the various contexts of the young person’s life and reflect the complexities of their development. They are not based on some overarching principle.
I come to the nub of my argument. It would be nice to rationalise away the inconsistencies and to create an ideal, overarching principle, but we are dealing with people’s lives, and the complex and varied development of young people. To develop further the point made by the hon. Member for Stockport, we must not only accept the inconsistencies, but extol them as the right approach as we acknowledge the complexity of growing up and becoming an adult.

Ann Coffey: I do not want the Minister to misunderstand what I meant when I was talking about inconsistencies. I was saying that if protecting 16 or 17-year-olds by redefining them as children created an inconsistency, I would happily live with it.
We understand that no law that we enact or social policy that we develop can reflect the myriad personal situations in someone’s life. In setting the age of consent at 16, we are not making a judgment about what is happening in a person’s life, but saying that children under 16 are especially vulnerable, and that people must take note of that. Their degree of vulnerability is tested in court after court—I admire the Minister’s skill in that respect—but that does not lessen our obligation to send a clear message. We understand that all 16 or 17-year-olds are different, but we want to send a message to adults that children under 18 are vulnerable and that special account must be taken of them.

Robert Buckland: The hon. Lady puts her case powerfully. We are often confronted with the call for the law to send a message. Sometimes that is the right thing to do, but the danger of sending a message through the amendment would be that we would end up creating the sort of confusion that would be unhelpful when applying the criminal law.
My right hon. Friend the Member for Basingstoke mentioned, in a succinct and helpful speech for which I was very grateful, the potential interrelationship with the proposed coercive control provisions, which we will come to later in our proceedings. All I will say at this point is that there is indeed a family context to those proposals that could be relevant when it comes to adults, either in an intimate relationship or in a family relationship. To say more at this stage would perhaps be to stray beyond the amendment, however, so I shall return to my point about the definitions.
The hon. Member for Stockport helpfully set out the importance of language. It is right to say—I readily acknowledge this—that in some statutory contexts, all people up to the age of 18 are regarded as children. However, as I have already said, the law uses different maximum ages in different contexts.
I will give the Committee two further examples of offences. For one of them, the maximum age of victims is 15—that is under section 2(1) of the Child Abduction Act 1984. I know that that will be subject to another debate, however, which I welcome. Secondly, there is the offence of causing or allowing a child or vulnerable adult to die or suffer serious physical harm under section 5 of the Domestic Violence, Crime and Victims Act 2004. That offence can be committed against a person aged 16 or over, but only if that person’s ability to protect themselves from violence, abuse or neglect is significantly impaired through physical or mental disability or illness. In other words, for the purposes of that criminal legislation, the age of 16 is when someone becomes a vulnerable adult. That is an example of when, of necessity, the law has been drafted in a bespoke way to fit the particular offence with which it deals.
Let me also deal with what I might generally term the age of responsibility. The Sexual Offences Act 2003 provides that it is an offence to engage in sexual activity with a child below the age of 16. That is to reflect the fact that, generally, children aged 16 and above are deemed to be able to give free and informed consent to sexual acts. As we know—this has already been alluded to—16-year-olds can marry with parental consent in England and Wales. Indeed, some may already be parents or carers of a person under the age of 16. Therefore, raising the maximum age of those against whom the offence under section 1 of the 1933 Act could be committed would risk introducing inconsistencies with other aspects of the law.
In short, children over 16 are generally deemed to be capable of living independently of their parents, while those under the age of 16 are generally more vulnerable and dependent on those who care for them. I use the word “generally” advisedly to take into account the points on which I think we all agree about individuals and their complexities.
We are concerned about the unintended consequences of bringing 16 and 17-year-olds within the scope of this criminal offence. In the case of neglect, doing so could create uncertainty as to where a parent’s caring responsibility ends and a young person’s free choice begins. The problem would be particularly acute if the 16 or 17-year-old had left home and was no longer under the care of their parents. For those reasons, the Government do not consider that it would be acceptable to introduce such uncertainty into this area of the law, so I invite the right hon. Member for Dwyfor Meirionnydd to withdraw the amendment.

Elfyn Llwyd: The Solicitor-General has dealt with the points that I raised but I am a little disappointed, because it is not beyond Parliament to put right the fact that there may be some inconsistency here and there. If there were an intention to go for this amendment, Parliament would have a raft of consequential amendments on various other legislation. I know that the Solicitor-General has had a brief to speak from and I understand why he puts these matters in that respectful way, but I am disappointed. I come back to the point that, when a person reaches 16, they do not suddenly become capable of doing everything themselves. They are not a mature person, by and large, so we need to protect them.
I am, however, encouraged. I will not try to draw the Solicitor-General out, because he mentioned the possibility of an interaction with a debate we will have on coercive controls, which I am very interested in. Perhaps we can leave this debate where it is at the moment and come back to the generality of it in the other debate, which I anticipate will be next week. If that is ruled in order, I am sure we will be able to do that. Although I am not very encouraged, I am not absolutely despondent. There is much still to play for and we will bat again on another day. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Katy Clark: With this it will be convenient to discuss the following:
New clause 18—Child cruelty: duty on police officers to liaise—
‘(1) Where an officer is investigating a potential offence under section 1 of the Children and Young Persons Act 1933 (cruelty to persons under 16), as amended by section 62 of this Act, he or she must notify the Safeguarding Children and Adults Board of the relevant local authority.
(2) A notification must include details of the child or children who are considered to be the victims of the offence.
(3) The Secretary of State may produce further guidance on the form a notification under this section may take.’
New clause 19—Child cruelty: duty on local authorities to liaise—
‘(1) Where a local authority’s Safeguarding Children and Adults Board (“the Board”) is notified of the investigation of an offence under section (Child cruelty: duty on police officers to liaise) the Board must—
(a) facilitate liaison between relevant officials with an interest in the child or children’s well-being, and
(b) refer the case to Children and Adolescents Mental Health Services.
(2) The Secretary of State may, by regulations, define the meaning of “relevant officials” in subsection (1).
(3) Regulations under subsection (2) must include within the meaning of “relevant officials”—
(a) the child’s school,
(b) social services, and
(c) the police.’
New clause 23—Mandatory reporting of abuse of children and vulnerable adults—
‘(1) The Secretary of State must initiate a consultation on the introduction of regulations mandating those working in regulated activities to report evidence of potential abuse of children or vulnerable adults to a relevant authority.
(2) The consultation in subsection (1) must seek to ascertain the degree to which the introduction of such regulations would—
(a) improve best practice in safeguarding children and vulnerable adults;
(b) increase information sharing between key agencies;
(c) enable earlier safeguarding interventions; and
(d) prevent deliberate attempts to cover-up abuse undertaken to safeguard the reputation of an individual or institution.
(3) For the purpose of this section “relevant authority” means—
(a) the local authority with safeguarding responsibilities;
(b) the local police force; and
(c) the Disclosure and Barring Service.
(4) The consultation undertaken under subsection (1) must be completed and a summary of the results laid before Parliament within 18 months of the date of Royal Assent.
(5) Following the completion of the consultation in subsection (1), the Secretary of State may under this section bring forward regulations to amend the Safeguarding Vulnerable Groups Act 2006 to introduce regulations mandating regulated activity providers to report suspicious activity to a relevant authority.’

Elfyn Llwyd: I have some brief remarks about new clauses 18 and 19. Similar provisions were discussed in the other place and, with the permission of Baroness Brinton, I have tabled the new clauses, with a couple of slight changes, to allow a discussion today.
The new clauses work in tandem to ensure that there would be a duty on police officers to liaise with the safeguarding children and adults board of the relevant local authority in cases where an officer is investigating a potential offence under section 1 of the Children and Young Persons Act 1933: that is, an offence of cruelty to persons under 16. Under the terms of new clause 19, in cases where a local authority’s safeguarding children and adults board has been notified that such an investigation is being undertaken, it would have a duty to facilitate liaison between officials who have an interest in the child and refer the case to the children and adolescents mental health services. Under the new clauses, relevant officials could mean, for example, the child’s school, social services and the police.
I hope that the purpose of the new clauses is self-explanatory. As soon as an investigation into a potential case of child cruelty has been reported, tools should be put in place that ensure that the police and local authorities work in tandem to safeguard the best interests of the child and ensure that the child’s welfare is not sidelined in the course of the investigation. To illustrate that point, Baroness Brinton pointed out in the other place:
“In the past year, the NSPCC helpline dealt with 8,000 contacts about emotional neglect and abuse, and 5,500 cases were so serious that they were referred to local authorities for further action.”—[Official Report, House of Lords, 15 July 2014; Vol. 755, c. 525.]
That represented a substantial increase on previous years.
Baroness Brinton also drew attention to the fact that, according to an online survey carried out by the NSPCC, only 7% of social work professionals believed that timely action was taken in response to neglect, while only 4% thought that such action would be taken in response to emotional abuse. By contrast, 75% of respondents said that they felt confident that such action would be taken in response to physical and sexual abuse, which shows a realisation within the profession that the law is not being applied consistently. We referred to inconsistencies in the previous debate; here is a call for consistency.
It is a welcome fact that clause 65 acknowledges that child cruelty can be emotional as well as physical. I obviously applaud that acknowledgement, but we must ensure that criminal justice and child protection professionals have the tools that they need to ensure that all children get the same level of care—the care that they richly deserve—whoever they may be and wherever they may reside. It is essential that children have access to child and adolescents mental health services, which is why they form part of new clause 19.
In essence, the new clauses would ensure that different bodies must work in a joined-up way to ensure best practice. It is vital that new clause 19 puts a duty on the safeguarding children and adults board to facilitate liaison between officials with an interest in a child’s well-being. However, having those tools in place is only the first step to achieving better results for child victims. As Baroness Brinton said when presenting the amendments in the other place, relevant professionals must receive training in how to recognise and deal with emotional and psychological abuse. The fact that only 4% of respondents to the NSPCC’s survey felt confident that victims of such abuse would receive adequate care is shocking.
It is clear that something significant must be done to address social workers’ concerns about the care received by emotionally abused and neglected children. Those who undertake social work perform a tremendously important public service for little reward, often under strict time pressures. Often, if anything goes wrong, they are the first to be criticised, however hard the job they are presented with. We clearly owe children more support, but we also owe the professionals more support, which is why I thought it pertinent to re-table the provisions. I look forward to hearing the Minister’s comments on the new clauses.

Seema Malhotra: I welcome clause 65 as a whole. I think children’s charities and Members from all parties will acknowledge that the move to recognise children’s emotional suffering is long overdue. I am glad that the Government have moved to make those changes in the Bill.
I have a few comments to make generally in support of the new clauses tabled by the right hon. Member for Dwyfor Meirionnydd, recognising the importance of the principle of strengthening child safeguarding procedures, of ensuring that different agencies that might be involved in children’s welfare understand their roles and of creating a stronger duty to communicate and liaise. Too often, we find that children’s welfare can fall through the cracks when agencies are not joined up, particularly local authorities and the police. When I speak to new clause 23, on mandatory reporting, I hope to show why it goes further than the other new clauses. I will explain why we think it would be a better solution.
First, however, on clause 65, I want to raise a broader question, which has also been raised by children’s charities. To what extent will guidance and directions be updated in line with the new offence to ensure that criminal justice and social care professionals, as well as juries, are fully aware of their responsibilities under the new law?
New clause 23 deals with the mandatory reporting of abuse of children and vulnerable adults. We call for the Secretary of State to initiate a consultation on introducing regulations mandating those working in regulated activities to report evidence of the potential abuse of children or vulnerable adults to a relevant authority.
In our debates on these issues, we can see the need for much more of a strategy on early intervention and prevention in relation to child sexual exploitation and other areas where children may be at risk. Anything we can do to strengthen safeguarding at an early stage should be considered by the House. We would like a consultation to ascertain the degree to which the introduction of regulations of the kind I mentioned would improve best practice, increase information sharing between key agencies, enable earlier safeguarding interventions and prevent deliberate attempts to cover up abuse.

Elfyn Llwyd: The hon. Lady is making a powerful case. I have read the new clause. She is right that it is better than those I drafted because it is more encompassing. It is a good new clause. If there were a Division in Committee or elsewhere, I would be happy to support it.

Seema Malhotra: I thank the right hon. Gentleman for his comments. I will consider the Minister’s response when deciding what to do following the debate.
The historic under-reporting—indeed, ignoring—of the abuse exposed by recent scandals shows the significant gap in the protection of children and in the reporting of abuse. Mandatory reporting by anyone with a duty of care for a child or vulnerable adult could be a significant tool in the fight that we need to lead as a nation.
A litany of cases in recent years has brought into sharp focus the need for a change of culture in the way we tackle the abuse of children and vulnerable adults, as well as in the reporting of that abuse—Jimmy Savile, the cases that have arisen from Operation Yewtree, and the systematic abuse of girls in Oxford, Rochdale and Rotherham, through to the exposure of abuse in institutions, including many schools, and the cover-ups that went on in those institutions. Many years later, adults are still dealing with the physical and emotional effects of abuse on their well-being.
The NSPCC has given stark and disturbing examples of institutional cover-ups of child sexual abuse. In August 2013, a fresh police investigation was launched to consider allegations of abuse at a detention centre in Durham. A total of 143 victims came forward initially, but after a BBC programme about abuse at the centre, more than 200 further victims came forward, bringing the total number to approximately 375. Thinking about what the reality must have been like for those young people, we have to ask whether it is true that no one would have known. If they did know, what was their obligation to act?
That type of institutional cover-up is one of the key practices that a mandatory duty to report should target. The intention is not to put additional burdens on overworked employees of institutions that care for children across the country, or indeed on our public services, so many of which, as we know, are overstretched, but to create a level of certainty about what should be reported and by whom.
Some people with suspicions may have wondered what they should do about them. The clarity that would come from a mandatory duty would ensure that people with suspicions felt confident that they could come forward, as they would know where the accusations would be investigated. It is also important to make it clear to those institutions that cover up abuse and put their institutional reputation above the welfare of children or vulnerable adults in their care that they could be criminally liable for doing so.
The implementation of any such duty would understandably be complex, but there could be a consultation on what the relevant duty would be. There could also be an order of priority for approaching relevant bodies such as the local authority or the police. For example, professionals could go first to the local authority. There are concerns that going straight to the criminal justice system, without going through the child safeguarding processes, might deter some people from coming forward.
In debates on the matter in the other place in July, the Government’s reasoning for rejecting amendments on mandatory reporting was that the historical child abuse inquiry was taking place and we should await its outcome. Yet, as Baroness Walmsley pointed out in October, the inquiry was still not under way three months later, and issues with it remain. It is unfortunate that the process has been in disarray, as all the while the issues of how to prevent child sexual exploitation and protect vulnerable children are not being addressed in the strategic way that we know is needed.
The new clause therefore calls for a consultation. We believe that would be a crucial step forward, enabling us to learn from the experience of mandatory reporting in other countries. Mandatory reporting has been introduced in the USA, Canada, Australia and several European states. In those countries, discretion has been removed and certainty has been put in its place. Indeed, the former Director of Public Prosecutions, Sir Keir Starmer QC, has expressed his support for mandatory reporting to close the gap in the law. He made that position clear after the report by Alexis Jay following the inquiry in Rotherham. The all-party group on child protection has also called on the Government to consider certain institutional duties that
“require people in leadership positions in institutions…to report allegations of criminal abuse committed against children by people working on behalf of the institution.”
We recognise that there are issues that would need to be addressed in any consultation, to make sure that the legislation could work without unintended consequences. One issue is the potential work load for children’s services. Children and adult services are massively overstretched and are currently responding only to some of the referrals they receive. To cope with their work loads, many children’s services are providing training to other front-line agencies to enable them to triage referrals more effectively. We have to make sure that there is the capacity to respond to what could be a growing volume of referrals.
We also have to recognise existing professional obligations and work. Front-line professionals, including social workers, doctors, nurses and teachers, are under various professional duties in their fields with regard to child protection. We would want to ensure that we did not criminalise someone who was following existing professional best practice. We would not want to see that existing best practice undermined. We would want to be clear about the level of safeguarding referral, and what level of indicators would warrant a referral, in the understanding that that may vary depending on the context. Schools and hospitals might have a lower referral threshold, depending on the situation. Legitimate relationships between a teacher and pupil, for example, must not be misunderstood. We would also have a question about where the referral would go and whether the order of services would be an important consideration.
It is understandable that evidence from abroad has raised other concerns, but there has been no indication that additional reports of potential abuse have not been extensively unsubstantiated. It will be important to look at that evidence as we move forward.
This is not about creating an extra burden: it is about asking how we strengthen the important child safeguarding measures that we have under the law. How can we add to the tools that professionals have to combat abuse and how can we promote a greater understanding of their responsibilities in reporting incidents? The shadow Home Secretary pointed out in August that it is now time for the UK to consider a mandatory duty to report, to make it clear that cultural change has to take place in every institution and to challenge any professional who is tempted to think that such serious issues can be solved quietly by brushing them under the carpet. A clear signal needs to be sent that people should not put institutional reputation before protecting children.

Robert Buckland: Another debate is another chance for serious discussion of issues close to the hearts of many members of the Committee. I am grateful to the right hon. Member for Dwyfor Meirionnydd for his words. He is right to say that reform of the law on child cruelty has long been a matter of interest to me.
I wish to put on record my thanks to Action for Children for the work it did to marshal support in both Houses to persuade the Government of the merits of the case. The Government have acted after consultation and a ministerial round table. After looking carefully at the evidence, the Government have made sensible proposals that reflect the balance that needs to be maintained, so that acts that anybody would regard as criminal are criminalised and acknowledging the point that abuse is not always purely physical. The more we learn about what goes on in the minds of children, the more we understand that the scars they bear are often internal, and that their mental well-being is as important as their physical well-being. I therefore commend clause 65 to the Committee.
I need not go into full detail about what the clause does, but I will say that, where necessary, the language of the 1933 Act has been modernised and specific provision is made under the “ill treatment” limb of the offence to make it clear that that can be non-physical, which deals with the points that have been made by many of us in the past few years.
It is also right to say that the section of the 1933 Act relating to the suffocation of children under three in bed has been amended to deal with other types of furniture used for sleeping to acknowledge that sadly in some households arrangements are irregular when it comes to the care of very young children. It would be a shame to miss this opportunity and not update the law to ensure that children are protected wherever they might sleep and in whatever circumstances.
It is worth emphasising that the 1933 Act—as I hope it will be amended—is only a part of the comprehensive legislative framework for protecting children. Other relevant legislation includes the Children Act 1989, which obliges local authorities to provide services for children in need for the purposes of safeguarding and promoting their welfare. In addition, the revised Government statutory guidance, “Working together to safeguard children”, which was published in 2013, sets out the roles and responsibilities that all professionals, including teachers, health visitors and the police, must carry out to keep children safe.
The “Working together” guidance sets out the case for having clear criteria for taking action and providing help, from early intervention to a child protection concern where there is reasonable cause to suspect that a child is suffering or likely to suffer significant harm. The guidance emphasises the need for locally agreed protocols, so that professionals know what to do when they have concerns for a child’s welfare. Where a referral is made to social care services, the local authority has a range of options at its disposal and the action it takes depends on the needs of the child.
The latest data show that as at 31 March 2014, more than 48,000 children were the subject of a child protection plan. Neglect was recorded as the most common initial category of abuse, with 42.1% of children categorised as the subject of a plan because of neglect, but here is the rub: the second most common category was emotional abuse, which affected 33% of such children. Criminal law has to keep pace with that reality, and I am delighted that we are ensuring that today.

Elfyn Llwyd: May I place on record one or two points that Lord Taylor raised in his concluding remarks when this matter was debated in the other place on 15 July? I do not expect the Minister to give me an immediate response, but I hope he will address them at a later point, whether by letter or during our consideration of the Bill next week.
First, Lord Taylor said
“as I informed the House on Monday last week, the Government are establishing an independent inquiry panel of experts in the law and child protection to consider whether public bodies and other non-state institutions have taken seriously their duty of care to protect children from sexual abuse. It will begin its work as soon as possible after the appointment of all the members of the panel. I hope to be able to report back to the House with details of those members and the terms of reference for the inquiry panel very soon.”
What has happened to that inquiry? The Minister might not be able to answer that now; I am not trying to put him on the spot.
Secondly, Lord Taylor continued
“the work of the national group continues apace. As part of this work, the group has considered the issue of mandatory reporting and whether there is a need for some form of more targeted statutory reporting regime to deliver better protection for children and vulnerable adults.”—[Official Report, House of Lords, 15 July 2014; Vol. 755, c. 528.]
That is bang on the debate we are having now. What is happening on the national group? I am not putting the Minister on the spot—he might not have the answer today—but can we have the answer to that in our later consideration of the Bill?

Robert Buckland: I am grateful to the right hon. Gentleman. In responding to the new clauses, I will deal with some of the more detailed points on mandatory reporting, but I will deal now with the point on the understanding of the inquiry at the time. As we know, the Home Secretary is determined to ensure that those appalling cases of child sexual abuse are exposed, so that we can not only protect people, but bring people to justice.
We must ensure—the Home Secretary has been working hard on this issue—that the survivors of abuse have confidence in the process. She has worked hard to meet representatives, and she will be making an announcement shortly. She is clear that we must get the balance of the criteria right so people have confidence in the process.

Elfyn Llwyd: Evidently, I have not understood the Minister. The first panel inquiry was, to put it in the vernacular, the Woolf inquiry. I understand that, and I am grateful to the Minister. If, at some point, he could respond to the second limb of my question, I would be much obliged.

Robert Buckland: As I have said, I am trying to deal with both matters. The announcement will be made shortly. We know that the process has not been easy, but the Home Secretary is determined that after the widespread consultation that she has carried out, we will end up with a process that will command confidence and will have the fullest integrity. I have no doubt that that will be the case. Everybody in the Government wants that to happen.

Seema Malhotra: Will the Minister give way?

Robert Buckland: I will give way to the hon. Lady.

Katy Clark: Order. We are straying from the terms of the Bill. I will allow the hon. Lady’s intervention, but she must bear that in mind.

Seema Malhotra: Thank you, Ms Clark. I want to press the Minister on one point. He said that the Home Secretary will make an announcement soon. Does he have any idea how soon it will be? Will it be during Committee stage, or afterwards?

Robert Buckland: It will be shortly. That is all I can say. I cannot give the hon. Lady any more detail.
We all share the objectives of the three new clauses. New clauses 18 and 19 seek to place a requirement on the police, when investigating a child cruelty offence, to inform the local safeguarding board of the investigation. That board would be placed under a duty to facilitate liaison between relevant local officials.
As a point of detail, rather than a criticism—as the right hon. Gentleman knows, I like to see as much legislative facility as possible—local safeguarding children boards and safeguarding adult boards are separate entities with different functions and objectives. As offences under the Children and Young Persons Act 1933 relate only to children under the age of 16, there is no clear role for safeguarding adult boards. I will therefore deal with the new clauses as though they referred to safeguarding children boards. The position in Wales is subject to some reform, and I understand that there will be six children boards and six adult boards to cover the whole of Wales.
I understand and share the right hon. Gentleman’s desire to promote information sharing and ensure effective co-ordination among the relevant agencies, but the question is whether the two new clauses will help in securing that objective. I am reluctant to agree that there should be a new duty on the police to notify the local safeguarding children board about child cruelty incidents. The statutory role of the board is to co-ordinate what is done by board partners, which includes the police, to safeguard and promote the welfare of children within the authority’s area and to ensure that what each partner does is effective. In other words, they do not have a role in dealing with individual cases in the way that the new clauses envisage. That is rightly the role of local authority children’s services themselves. Placing a duty on the police to notify the board of specific cases would be out of kilter with the duties of other board partners.
The board has a much more strategic role of overview, rather than operational functionality. For that reason, new clause 19 is also unnecessary, and does not fit with the statutory functions of local safeguarding children boards. As I said, it relates to policy and strategy, not individual cases. As I think I have made clear, I fully understand and appreciate the vital importance of information sharing.
Let me turn to where the statutory duties already fall. Local authorities are already subject to duties under the Children Act 1989. In practice, if an individual is being investigated over allegations of child cruelty, there may well be an overlap with a local authority duty under sections 17 and 47 of the 1989 Act. Under those provisions, local authorities should in any event assess what help, if any, they should provide to a child in need, or undertake inquiries to establish whether they should take any action to safeguard or promote a particular child’s welfare, where that child is at risk of significant harm. I know that many members of the Committee are familiar with the significant harm threshold test.
As part of what I have described, local authorities will consider whether it is appropriate to engage other partners, including child and adolescent mental health services. In more serious cases, the police may take the view that the child is at such risk that they could be removed to police protective custody, with a view to the seeking of an emergency protection order and with the potential for the local authority to start section 47 inquiries into the child’s welfare. In such cases, the police must inform the local authority of steps being taken with regard to the child. I have already referred to the “Working Together to Safeguard Children” revised guidance and practice advice of 2013, which includes heavy provision for information sharing. For those reasons, while I agree with the right hon. Gentleman’s aims, I am not persuaded that new clauses 18 and 19 are the right approach. I hope that in the spirit of this debate he will be content not to press them.
New clause 23 would put on to a statutory footing our commitment to consult on whether there should be a mandatory duty on those in regulated activity to report known or suspected abuse of children or vulnerable adults. Hon. Members will no doubt be pleased to hear that the Government are sympathetic to the spirit of the new clause. I can do no better than to echo the words of my ministerial colleague Lord Bates, who on Report in the other place said that the Government would
“now hold a full public consultation on the issue of mandatory reporting. We will consult broadly on the advisability, risk, nature and scope of any reporting duty, including questions on which forms of abuse it should apply to, and to whom it should attach. I should emphasise that the Government will look at all the responses they receive with an open mind. It will be a thorough, open and transparent consultation with a rigorous evaluation of the responses.”
He added:
“Given the significance of the issue, it will run for the full 12 weeks. We will undertake to report back to Parliament on the results.”—[Official Report, House of Lords, 28 October 2014; Vol. 756, c. 1083-84.]
I am happy to reiterate that commitment today.
I hope that, in the light of that clear commitment to consult, all members of the Committee will be reassured about the Government’s resolve to examine that serious issue. The Government recognise concerns about our current safeguarding system and we understand public anxiety about the potential under-reporting of abuse.

Ann Coffey: I want to ask, for clarification, when the consultation is due to start and finish.

Robert Buckland: I want to come to that and put it into context, and explain why it is a complex issue, which we want to get right before we start the process. I will just elaborate on what I was saying.
We understand public anxiety and it is right that we should continue to look carefully at the matter before coming to a decision. We should also take further time to listen to the views of all those who have an interest. I hope that the hon. Member for Feltham and Heston will be reassured that we share her objective of enhancing the protection of children and vulnerable adults; but we must be certain that we get things right. I think we would all agree that the consequences of not doing so would be serious.

Seema Malhotra: I acknowledge that there is shared concern across the House; and, indeed, in other contexts, such as female genital mutilation, mandatory reporting has been the subject of separate consultation. I am sure that that will be part of our debate next week. However, I want to press the Minister on the point raised by my hon. Friend the Member for Stockport: is he saying that the consultation may be started before the election, or is he talking about deferring it? If it takes 12 weeks, there is not much time between now and April.

Robert Buckland: I am grateful to the hon. Lady for her intervention, because I am coming to the current state of play on the consultation. The aim is to do it as soon as possible. Mandatory reporting is a complex issue. We want to be absolutely certain that the interested organisations and the public have the appropriate information and the options available to them so that they can make a proper response to the consultation. We also want to display the evidence on reporting regimes in overseas jurisdictions. It is important that we get the international comparisons right, and we want to make sure that the questions in the consultation are right.

Elfyn Llwyd: I am interested in this point. When the consultation is concluded, and if, as we all hope, it is positive and there is a change, will this good new clause that we are discussing be in subordinate legislation to the Bill? In other words, would it be in an SI?

Robert Buckland: I do not think there is a need to enshrine a duty to consult in primary legislation. There is no need for any form of primary or secondary legislation when the Government make a decision to consult. The commitment is clear—

Elfyn Llwyd: The Minister may have misunderstood. I apologise: I did not make myself clear. If the consultation concludes that we need a change in the law, would that be by statutory instrument?

Robert Buckland: I think it would probably need primary legislation. If I am wrong about that, we can clarify that in due course.
I acknowledge the role that Baroness Walmsley has played. She has made huge strides on this matter. Her tireless work has helped to forward the agenda and the work of third sector organisations such as the NSPCC, plus the victims and survivors of abuse whose input cannot be underestimated.

Ann Coffey: Will the Minister give way?

Robert Buckland: If the hon. Lady wants to intervene on the point about timing, I am about to deal with that. The Government have publicly committed to the 18-month timetable as provided for in new clause 23, but we have to be absolutely clear about the terms of reference of the consultation and the nature of the questions that will be asked.

Andrew Stunell: The Minister is dealing with the new clauses thoroughly, and I appreciate that. I commend him for what he said about Baroness Walmsley in the other place, because she has done a lot of work on this and I know she will value his recognition. Nevertheless, in my report back to Baroness Walmsley I would like to be able to completely assure her that we are on the right track. He just mentioned the commitment to the 18-month timetable. Can he underline that, and perhaps share with the Committee how he sees the primary legislation finding its way into a Queen’s Speech or on to the statute book?

Robert Buckland: As my right hon. Friend has said, we have been engaging positively with Baroness Walmsley about the way in which the consultation document can be framed. As I have said—I think I am right—primary legislation would be needed, and that would have to take its place in any new Parliament and be part of a new programme of legislative reform. The 18-month timetable that the Government have publicly committed to today is a clear indication that we want to get on with this as soon as possible. We want to adhere to the spirit of the new clause tabled by the hon. Member for Feltham and Heston. I commend her for bringing this forward and I thank her for allowing the debate to be held so that the Government can reaffirm their commitment.

Ann Coffey: I am just trying to understand that. Many phrases are used: “as soon as possible” and “shortly”, but “imminently” has not been used. As my hon. Friend the Member for Feltham and Heston said, we are close to the dissolution of Parliament. I cannot see how the consultation can be completed before Parliament is dissolved, unless the Minister uses the phrase “very imminently”.

Robert Buckland: I am grateful to the hon. Lady. She speaks wisely, as ever. The 18-month period is realistic, and something that everybody can support. It shows that there is an acknowledgement that because we are at a particular stage in the parliamentary cycle, we want not only to get the terms of reference right, but to ensure that this happens at a time when minds can be focused on the task in hand. This is an important, serious process, which was why my noble Friend Lord Bates committed to the full 12-week process, which was significant it itself. I hope that there are many responses to the consultation so that it is as full as possible and that legislation might subsequently be introduced in the new Parliament.
I hope that on reflection, and given my commitment, the hon. Member for Feltham and Heston agrees that we do not need the proposal in her new clause to be enshrined in legislation. I invite her to indicate whether she will press the new clause to a Division.

Seema Malhotra: I thank the Minister his positive response to our new clause. We will not press it to a Division, but we hope for clarification before Report about whether he believes that primary legislation will be necessary if a consultation concludes that there should be a duty for mandatory reporting in our legislative framework.
I am keen to understand the process by which the Government will ensure that the questions in the consultation are right and that there is agreement that they are right. If we look at the history of a number of inquiries on child abuse and related matters, the consultation and agreement on how to move forward have created their own problems. I should be grateful if the Minister dealt with that and, indeed, if he provided further indication, even during the course of the Committee’s proceedings, about how quickly such a consultation could begin.

Robert Buckland: I thank the hon. Lady for her helpful intervention. As I thought—I have received confirmation—primary legislation would be required to implement a mandatory reporting regime because such a regime would place legal duties on front-line professionals and would have clear sanctions attached to it. That would need to be enshrined in statute, so secondary legislation would not be an adequate vehicle to achieve that.
The hon. Lady’s point about the process by which we need to get the questions right echoes exactly what I said earlier, amid a number of understandable interventions, as that is what is happening now. We want to make sure that we frame the questions properly and that those who are directly concerned, especially survivors, feel that they have confidence in the process. I assure her that that process is ongoing and is at the necessary preparatory stage to get ready for the consultation.

Seema Malhotra: In recognition that the issue has cross-party support, will the Minister consider involving the Opposition and other hon. Members who may be interested in making sure that their concerns are adequately reflected in the emerging consultation questions?

Robert Buckland: I should thank the hon. Lady for agreeing not to press her new clause to a Division. Our debate has shown how input from all parties in the House can improve the process by which we achieve a desired outcome. It would be wholly wrong of me to pre-judge any consultation. It has to be meaningful and we must be guided by what I hope will be a weighty and useful process. I will be happy to reflect on any input that she or other colleagues wish to provide and to think about what she said about formulating the consultation. She is, of course, free to write to us—I am sure that she does so anyway as an Opposition spokesman—and we will consider the points that she makes. I ask the hon. Lady and the right hon. Member for Dwyfor Meirionnydd not to press their new clauses to a Division.

Elfyn Llwyd: In the light of the Solicitor-General’s response to the hon. Member for Feltham and Heston—

Katy Clark: Order. This is not the point at which any new clauses would be withdrawn, but you are very welcome to—

Elfyn Llwyd: I was about to ask the Committee’s permission to withdraw, in the light of the response to new clause 23.

Katy Clark: I am grateful to the right hon. Gentleman, but this is not the point at which to do that, because this is a clause stand part debate. If the right hon. Gentleman wishes to make some general points about the new clauses or clause stand part, I am happy to allow him to do so, but there is no need for him to seek leave to withdraw, because this is not the appropriate stage at which to do that.

Elfyn Llwyd: I am grateful, Ms Clark. I will just sit it out.

Question put and agreed to.

Clause 65 accordingly ordered to stand part of the Bill.

Clause 66  - Possession of paedophile manual

Question proposed, That the clause stand part of the Bill.

Katy Clark: With this it will be convenient to discuss the following:
Government new clause 8—Sexual communication with a child.
Government amendments 19 to 23, 2, 5 and 27.

Robert Buckland: Before I speak to new clause 8, let me put on record my thanks for the work of the National Society for the Prevention of Cruelty to Children, because it is largely as a result of its efforts and those of its supporters that we are debating this new clause, which will create a new criminal offence prohibiting sexual communications with children. Right hon. and hon. Members will be aware of the “Flaw in the law” campaign that was launched last year by the NSPCC. The society targeted its campaign at what it felt was a gap in the law whereby an adult could, for a sexual purpose, communicate a sexual message to a child, or elicit a sexual communication in response from a child, without prosecution. Committee members will, I trust, have seen the NSPCC’s written evidence, which sets out its well-argued case for a new offence. Lord Harris of Haringey tabled amendments to the Bill on Report in the House of Lords and again on Third Reading to create a new criminal offence aimed at prohibiting the behaviour that I have described. He withdrew his amendment as a result of the Government’s commitment to reviewing and considering the matter further.
Right hon. and hon. Members can be reassured that we have some of the most robust and respected laws in the world when it comes to dealing with those who would commit sexual offences against children. My hon. Friend the Member for Mole Valley has been at the forefront of efforts to address this area of offending. Indeed, the new offence of possession of paedophile manuals for which clause 66 provides is a direct result of his assiduous campaign.
I am sure that the Committee agrees that it is vital that we ensure that our laws in this area are kept up to date. The Government have effected several important changes to the existing law so that it is as strong as possible. Amendments to the offence of child sexual grooming under section 15 of the Sexual Offences Act 2003, which reduce the number of prior contacts that an adult has to have with a child before the offence of grooming can be committed from two to one, have already been taken forward in the Criminal Justice and Courts Bill. That Bill also amends the offence in section 1 of the Malicious Communications Act 1988 to increase the maximum custodial penalty from six months to two years. I spoke in support of that measure when I was a member of that Bill Committee. Those measures, alongside the reforms in this Bill, demonstrate the Government’s commitment to tackling the sexual abuse of children.
In many circumstances, it may already be possible to prosecute individuals under the current law in relation to sexual messaging to children or similar behaviour, depending on the circumstances. During the debates in the other place, my ministerial colleague, Lord Bates, set out in detail the current offences that could apply, and I will not repeat them now. The NSPCC was concerned that some offenders could fall between a gap in the law, or that a conviction for their behaviour would not automatically attract the sex offender notification requirements and the vital supervision and monitoring that those requirements entail. We have decided to act in response to that concern. My right hon. Friend the Prime Minister announced the Government’s intention to create this new offence at the We Protect Children Online summit at Lancaster house in December.
New clause 8 creates a new offence that criminalises a person aged 18 or over who communicates with a child under 16 who the adult does not reasonably believe to be 16 or over if the communication is sexual, or if it is intended to elicit from the child a communication that is sexual. Like the existing offence under section 10 of the 2003 Act—that of causing or inciting a child to engage in sexual activity—the new offence will be committed whether or not the child communicates with the adult. It will apply if the defendant can be shown to have acted for the purposes of obtaining sexual gratification.

Ann Coffey: We are probably returning to the issue of inconsistencies again, but the Minister will be aware of increasing concern about the sexual exploitation of young people by other young people. I notice that the new clause deals with an adult over 18 contacting a child under 16, but of course a 17-year-old contacting an 11 or 12-year-old girl can be a very serious case of child sexual exploitation.

Robert Buckland: The hon. Lady makes an interesting point. I will come back to it in a moment, if I may, because it will give us a useful opportunity again to address the understandable variances in the law.
Let me explain the point about communications between young people themselves. There is a choice to be made. We have to be careful that we avoid discouraging the discussion of sexual matters between young people. Such discussion is a fact in the context of everyday relationships and I am sure that she would not want an unintended consequence of this legislation to be the criminalisation of children and young people in such a way.

Ann Coffey: I thank the Minister for that point, but I am referring not to conversations between young people, but somebody who may be 17 sending serious and overt sexual images to a much younger child of perhaps 11. This is about not communication, but things that are harmful. The material that is sent is sometimes quite shocking.

Robert Buckland: In a nutshell, the answer is that existing offences cover that situation. Off the top of my head, I cannot remember the relevant sections of the 2003 Act, but I am pretty sure that that such behaviour is already covered. With the help of my officials, I might well be able to get chapter and verse about that for the hon. Lady before I conclude.
I want to convey to the Committee the important message that the new offence will apply equally online and offline. My hon. Friend the Under-Secretary made that point very powerfully in another context during one of our previous sittings. This Government treat online behaviour as seriously as offline behaviour; there is no distinction in our mind between such categorisations.
The maximum term of imprisonment under the new offence would be two years. By virtue of Government amendment 5, the new offence will extend to England and Wales. Importantly, Government amendment 21 provides that the new offence will automatically attract the notification requirements for registered sex offenders under the 2003 Act. We are dealing with what some would classify as a gateway offence, but one that can involve prevention as much as prosecution.
The police and the Crown Prosecution Service have welcomed the Government’s proposals and agree that a new sexual offence will indeed help to ensure that young people are fully protected by the law. It will also allow the authorities to intervene earlier to prevent more serious offending, such as sexual grooming and contact offending against children.
I know that the whole Committee is united in its condemnation of the sexual abuse of children. The efforts of right hon. and hon. Members from all parties working together have ensured that our laws in this area remain strong and up to date. The new offences in clause 66 and new clause 8 are a further important addition to existing criminal sanctions to prevent the sexual abuse and exploitation of our children.
In direct response to the hon. Member for Stockport, I have chapter and verse. Section 12 of the 2003 Act makes it an offence to cause another person to look at an image of a person engaging in sexual activity if they act for the purposes of sexual gratification, so that provision would cover the scenario that she quite properly outlined. I commend the measures to the Committee.

Seema Malhotra: It is a pleasure to speak to this important clause and to recognise the NSPCC’s work on the new offence in new clause 8.
We welcome absolutely clause 66, which closes an important loophole in the law that could be exploited by paedophiles. Any move further to protect children is to be welcomed. Various provisions in law can be used to limit the sale, publication, production or dissemination of so-called paedophile manuals, but not the simple possession of such a manual. That seemed to have slipped through the net of the criminal law framework, so it is important to close that loophole.
On new clause 8, I note the work of Lord Harris of Haringey in the other place, as well as that of colleagues on both sides of the House, including my hon. Friends the Members for Rotherham and for Stockport. Stories of grooming, including by means such as text message, e-mail and Facebook, to which the next generation is so much more subject, show the changes in technology that have led to new channels through which children can be approached. That has led to the vital development of the new clause, which will mean that the law will effectively catch up with how communications operate in society.
An incredibly important aspect of the Government’s proposals is the fact that the law will operate online and offline. The change remedies a situation about which there has been an important campaign—even the phrase “Flaw in the law” has captured the imagination—which has made it much easier for Government and Opposition Members to get behind the reform.
We have acknowledged in the debate the difficulties that the police have faced in policing what effectively has been sexual messaging, which may start with the abuser aiming to flatter the child before they move on to create a trap, or cycle, that the child is caught in. In the written evidence the NSPCC gave to the Committee, it effectively highlighted the difficulty that the police face in bringing charges. We know that paedophiles and those engaged in grooming will understand the law, and how to work around it, so it is incredibly important that we close any loopholes we can, in order to protect children.
I have one question, which arises from my discussions with the NSPCC and others, about the use of the term “sexual gratification”. Perhaps the Minister can say a little more about it. In the original amendment tabled by Lord Harris of Haringey, the term used was “sexual purpose” rather than “sexual gratification”, and I understand from the NSPCC that it envisages possible problems with the words “sexual gratification”, which are perhaps not so clearly defined as “sexual purpose”. Indeed, the term “sexual gratification” may be too high a bar, which would make it difficult to bring prosecutions. The NSPCC’s feedback from the Scottish police is that the requirement to prove “sexual gratification” has sometimes been too high a threshold, and has blocked prosecutions.
I would be grateful if the Minister could give his response to this issue. My contribution has been intended to be a genuinely constructive criticism of a cause that I know we all welcome. Perhaps he can say whether he shares these concerns; what the Government’s reasoning behind the wording was; and whether he believes there is a deeper reason for it.

Robert Buckland: The phrase “sexual gratification” already appears in sections 11 and 12 of the 2003 Act. It is not specifically defined and rightly so, because it is well understood by the courts. In fact, the courts have given it a wide meaning. The Court of Appeal has expressly held that the term might take many forms, and could either be immediate or extend to a longer-term plan.
It may well be that a term such as “sexual purpose” could convey our intended meaning, but we think that the right approach is to stick to a phrase that has already been widely interpreted by the courts. Therefore we believe that, well-intentioned though these concerns are, they are unfounded in the light of case law experience.

Seema Malhotra: I thank the Minister for that response, and I understand both the temptation and sometimes the ease of using terms that are already defined within the law and that there is perhaps case law about. However, I wish to press him further about how he will address the concerns that the term “sexual gratification” could set too high a bar for prosecutions and that therefore we might not have cases brought, even though prosecutions should be brought and the police would want them to be brought.

Robert Buckland: I note that the hon. Lady mentioned Scottish police. Obviously, the Court of Appeal will deal with the criminal law of England and Wales. We are satisfied that the way in which the word “gratification” is defined is wide enough to avoid the sort of concerns that she has expressed. We think that it does fit the bill, and that it will be a fit in terms of encompassing a wide range of conduct. The danger is that we start to redefine things in a way that has unintended consequences. “Purpose” is a different type of word; it might not achieve what the hon. Lady wants it to achieve. We think the use of the word “gratification” is working. Why change it?

Seema Malhotra: I thank the Minister for that comment. Perhaps we can approach things in a different way. Perhaps we can say that while “sexual purpose” may not be the perfect term, there still remains an issue and there could still be a justice gap. I wonder whether, between now and Report, I could write to him further on this issue, to see whether the police and charities can help to define further how big they think that gap could be and whether there is anything else that could be done to improve the Bill so that it achieves the intended outcomes that we all want.

Robert Buckland: I look forward to the hon. Lady’s letter.

Seema Malhotra: I thank the Minister for that comment.
In conclusion, we welcome clause 66, and we welcome the Government’s commitment to consider whether “sexual gratification” is the correct, or the most complete, wording for the new clause.

Maria Miller: I rise to speak to new clause 8. The ways in which technology can now be used to prey on children are deeply concerning. The Government have moved swiftly to ensure that laws are kept up to date and that enforcement is robust, and I believe that they lead the world in their work in this area. Not only do they ensure that children are safe in the UK, but they work in partnership with many other Governments across the world to make children in other countries safer.
New clause 8 is important, and the NSPCC is to be applauded for its work on the measure and more broadly, particularly on the aspects of child exploitation that I dealt with when I was a Minister. The detection of that crime is incredibly important; will the Minister outline what the Government are doing to ensure that when the law is implemented, detection will be successful? In an earlier debate, we talked about the importance of training police on cybercrime, and in many ways, new clause 8 deals with another version of cybercrime. The proposed offence certainly involves technology, and it goes well beyond the training that policemen and women have historically received.
We must make sure that evidence is available. At present, if the communication covered by the offence outlined in new clause 8 is between schoolchildren or students, teachers have the legal power to delete it. Guidelines from the Department for Education make it clear that if teachers believe that a third party is involved in the communication, it should be reported to the police. I have asked for detailed information on the numbers of such reports that are made, and no such information is collated. Although it is entirely possible that schools are making such reports, it is difficult to track them down. I am concerned about how easy it is for teachers to make that sort of judgment for themselves. Perhaps the Minister would comment on that.
Although the proposed change in the law is very welcome, the Minister would do well to reassure the Committee that it will not lead to teachers inadvertently cutting across the law. Sexting has a foothold in the lives of many young people in this country, and that concerns me. If we are to ensure that young people are as safe as they can be, we must look at what I feel is an anomaly. Will the Minister explain how we can be vigilant and avoid any unintended consequences? How can we ensure that if adults—people over the age of 18—request that individuals under the age of 18 undertake the communications covered by new clause 8 in order to circumvent the law, teachers do not inadvertently delete the evidence so that police action cannot be taken? I hope that the Minister will share my view that it would be useful to use the Committee to shed more light on the matter, and to ensure that colleagues in other Departments take action.

Paul Beresford: I am much in favour of clause 66 and also the new clause. I will not go on about it, because I have been going on about it since 2002 with various Governments and Ministers. I respect the comment made about being able to persuade Ministers, but not necessarily civil servants. I was at the wrong end of that, but I mean no disrespect to anyone else here.
As I was sitting quietly listening and reading, I noted amendment 20. Will the Minister look at that? Much of our legislation applies internationally and it has been very effective. We recently had the World cup. I take more interest in one of those peculiar balls that is pulled and tweaked at the end: they call it rugby. The Minister’s Welsh accent indicates he is probably in favour of that.
The World cup in Brazil attracted paedophiles from miles away—hundreds if not thousands of miles—and there was a huge campaign. An organisation called Happy Child—it is based in my constituency, but works in Brazil—had the “It’s a Penalty” campaign, which was extremely successful. Everybody flying in and out of this country and many others got a warning that any sexual activities with children in Brazil would mean being hit with a penalty.
The feeling of the police forces here was that with a bit of luck the Brazilian authorities would deal with any cases, because Brazilian jails and our jails are slightly different, and to spend a long period of time in a Brazilian jail would make spending any time in a British jail look like a comfort home. However, the key point in the campaign was that if anyone engaged in any activities with children in Brazil and they were not collected by the Brazilian police, but that became known here, they could be prosecuted in this country.
I am a little surprised, although I have possibly misunderstood amendment 20. Many of the gangs that organise the abuse of children, including the sorts of activities in both of the clauses we are considering now, are international. I touched on the Brazil case, and I could mention another one. A friend of mine arrested two English individuals who were on their way with their manuals and computers to France to utilise the opportunity to abuse children. It was felt that they were probably going for French children, although it was not clear. They could easily get round the legislation—as I read it, although I am not a lawyer—by using internet cafés in France, for example, to do exactly the things that we are legislating against here.
So I have a little difficulty: I am sure it is the way I read the amendment but, if it is not, can we quietly think again? The ingenuity of paedophiles and paedophile gangs and the international nature of their activities—one only needs to look at Europol for recent activities—indicate that to restrict this legislation, as I read it, to this country alone is a mistake, and I do not want to start another 10-year nag to get it changed.

Robert Buckland: The debate has ranged widely, as was probably going to be the case, bearing in mind the issues raised and the number of new clauses that now accompany an important change to the law in clause 66. I hope that I have addressed the point raised by the hon. Member for Feltham and Heston about the phraseology of the words “sexual gratification”. I pay tribute, in passing, to my hon. Friend the Member for Mole Valley. He perhaps underplays the role that he has played in making sure that the possession of paedophilic materials and paedophile manuals becomes a criminal offence in its own right.
I did not do it justice in my opening remarks, but I will say this. For years, the possession of such material could have been used to assist the prosecution of paedophiles as incriminating material that would allow a jury to conclude that the individual concerned was somebody with those tendencies, but it was not easy. The admissibility of such evidence depended on various other factors that sometimes were not present, and it was galling to take the role of a prosecutor, as I did on occasions, and realise that this disgusting material was not admissible and the jury would not know anything about it at all.

Paul Beresford: What is even more important is that—as the Minister set out at the beginning of this afternoon’s discussion—the legislation in this country, introduced by the previous Government and this one, has had a large proactive aspect to it. It is that aspect that really is the difference with the manual.

Robert Buckland: Not only will the measure now allow that offence to appear as part of a series of charges, which is welcome, but it is the sort of offence that can deal, at an early stage, with people who have perhaps not committed fully completed offences of paedophilia, but who were quite clearly set upon that path. That is why giving the police and the courts the power to deal with possession of this type of material, subject to a number of defences that I think are entirely consistent with existing criminal law, is a real step forward. I thank my hon. Friend very much indeed for all his efforts.
On the particular point about extra-territorial jurisdiction that my hon. Friend raises, our starting point is that it would apply in the most serious cases. While it remains available in other cases, we have decided that it would not be available in this case, bearing in mind the type of offending that we are dealing with. That is not an easy decision to make, but we feel that as a policy, it is right to focus on what everybody would regard as that cohort of offending that would be extremely serious. That is obviously not to minimise the nature of the offending in this case.

Paul Beresford: I gave, very deliberately, an example of two gentlemen—if I can call them gentlemen: they are paedophiles—much of whose activity actually took place in Franc although they were based in Dover. The legislation is going to go through and they will just hop across the border.

Robert Buckland: I take my hon. Friend’s point, but I have to also look globally at the way that ETJ—extra-territorial jurisdiction—applies. While it would be an easy get-out for me to make commitments today on that basis, it would not do a general service to the careful way in which we have to apply this important principle, bearing in mind the range of offending that we have to deal with as an enforcing authority.

Seema Malhotra: I thank the hon. Member for Mole Valley—I apologise, I meant to recognise his work earlier—for the point he has raised. It had been unclear to us exactly how Government amendment 20 applied to those who were perhaps resident in the UK, but were abroad and vice versa. That might be an issue that we will be keen to come back to on Report.

Robert Buckland: I am grateful to the hon. Lady for that indication.
My right hon. Friend the Member for Basingstoke asked how to ensure that the way in which the offence is dealt with will be successful. We will work with the College of Policing and the CPS. They will provide and prepare appropriate guidance to make the necessary operational arrangements, which will coincide with the commencement of this offence, as happens when a new concept and new criminal offences are introduced in other scenarios. I give her that reassurance.
My right hon. Friend asked about the extent to which teachers might have a power to delete texts that they find. I shall have to write to her about that because I want to give her sufficient detail to answer what is an important point and one that she has pursued in the past. With that undertaking, I promise to furnish her with further information.
I commend clause 66 and the new Government clauses to the Committee. I thank all hon. and right hon. Members for taking part in what was a useful debate.

Question put and agreed to.

Clause 66 accordingly ordered to stand part of the Bill.

Schedule 3 agreed to.

Ordered, That further consideration be now adjourned. —(Damian Hinds.)

Adjourned till Tuesday 20 January at twenty-five minutes past Nine o’clock.
Written evidence reported to the House
SC05 Barnardo’s
SC06 Action for Children